Fair Use & WashU

To be “fair” (sorry), given its role on campus, every week could lay claim to the name. But there’s value in recognizing—even celebrating—the doctrine’s role in the academic enterprise, and specifically, to our work at WashU Libraries.

So in observance of the occasion, I write to share an example of how fair use is deployed productively in a project here.

Grant-Funded Digitization with Uncertain Rights

Last year, the Libraries received a $250,000 grant to digitize materials in the Walt Reed Illustration Archive. Digitization is effective when its products are widely disseminated. Funders are reluctant to support projects without justifiable legal and ethical grounds for users to access and re-use digital copies. This isn’t a problem if the underlying content is from a single owner and donor, who by terms of transfer conveys title and interest to the University, which in turn can make the works and their surrogates broadly available. But the Walt Reed collection contains hundreds of thousands of magazine tear sheets, periodicals, and books. Illustration House—the entity which collected the content of the acquired Archive—wasn’t the copyright holder of all transferred materials. And CLIR, for its part, isn’t interested in giving big bucks to create thousands of images that sit on the shelf. So why is the project moving ahead?

Because we rely on fair use.

This isn’t to say we waive a wand and the law takes shape on our side. Applicants submit a description of all known rights and access or legal restrictions relevant to the source materials. This allows reviewers to “assess the degree to which a proposal reflects [a] commitment to supporting open, free, unrestricted access to digitized scholarly content.” And to receive funding, all recipients must sign an IP agreement representing that use of the digitized materials won’t infringe the copyright of any person or entity. This means we need well-reasoned belief that the project activities are non-infringing fair use.

So how do we get there?

First, the bad news: we don’t know for sure whether a proposed use is fair use (only a federal district court can tell you that; and we don’t want to be there). But we know it’s a limited privilege to use materials in a reasonable manner without consent, that there are four factors we’re required to apply, and that the statute favors purposes like criticism, comment, news reporting, teaching, scholarship, and research.

We also know fair use is persuasive in contexts where the underlying work by its nature was intended to be broadly disseminated, where its commercial value has faded, where its proposed reuse is for nonprofit educational purposes tied to critical analyses, and where difficulty in finding an entity authorized to grant permission demonstrates lack of an effective licensing market. Put simply, and in relation to the Walt Reed Archive, there’s a great deal of fair use underlying scholarship on advertising and illustrations. And given the research value of the underlying materials, the lack of potential for harm to rightsholders, the institutional mission of the Libraries consistent with that of the University, and good-faith consideration of precedent and accepted community practices: the project team felt prepared to submit that the proposed activities were supported by fair use.

Feeling good about fair use, of course, doesn’t mitigate all issues. There may be privacy, publicity, or personality rights to assess, along with a range of potential ethical concerns, including culturally or religiously sensitive content, or confidential information. But in the case of the Walt Reed Illustration Archive project, we wouldn’t be where we are without the essential doctrine of fair use.